Subpoena of an overseas witness

JDKB17

Hi all,

My mother has brought criminal charges against my father. I am no longer in contact with my mother and my relationship with my father is severely strained and I expect to no longer have contact with him in the immediate future.

I and my brother along with both of our partners are due to emigrate to Canada within the next six months. However, my father has other ideas and is demanding that we be a witness to him if the case goes to trial. He is also demanding that our brother move back to Ireland from Canada to give evidence on his behalf.

I am afraid that if the case does go to trial that it may affect our ability to emigrate and that it might also mess up my other brother's life in Canada.

If we are all living abroad (in Canada) during the trial can we be forced to come back to Ireland to give evidence? Or could we potentially give evidence via a written statement or even Skype for example?

My brother currently in Canada is on a Working Holiday visa for the past 7 months and the four of us emigrating will also be on Working Holiday visas.

coylemj

If it's a criminal case it's not a subpoena, it's a witness summons, it gets served by a Garda and it cannot be served overseas. Your brother cannot be compelled to return to Ireland to act as a witness and the authorities in the country he is living in wouldn't see it as any of their business, even if someone managed to bring it to their attention.

In relation to the people still in Ireland, your father can call you as a witness but it doesn't mean you have to give evidence in his favour. In fact, in a criminal trial, without being 100% certain of what you're likely to say and that it will be favourable to his client, no lawyer worth his salt will call you as a defence witness. If you have already emigrated, you are out of reach as far as he is concerned.

You have nothing to worry about.

JDKB17

coylemj wrote: »

If it's a criminal case it's not a subpoena, it's a witness summons, it gets served by a Garda and it cannot be served overseas. Your brother cannot be compelled to return to Ireland to act as a witness and the authorities in the country he is living in wouldn't see it as any of their business, even if someone managed to bring it to their attention.

In relation to the people still in Ireland, your father can call you as a witness but it doesn't mean you have to give evidence in his favour. In fact, in a criminal trial, without being 100% certain of what you're likely to say and that it will be favourable to his client, no lawyer worth his salt will call you as a defence witness. If you have already emigrated, you are out of reach as far as he is concerned.

You have nothing to worry about.

As far as I'm aware it would be a criminal trial due to the charges/allegations involved.

Thank you very much for your reply, it has put my mind at ease.

GerardKeating

coylemj wrote: »

If it's a criminal case it's not a subpoena, it's a witness summons, it gets served by a Garda and it cannot be served overseas. Your brother cannot be compelled to return to Ireland to act as a witness and the authorities in the country he is living in wouldn't see it as any of their business, even if someone managed to bring it to their attention.

If the "witness summons" was served while the witness was in Ireland, but they later went abroad, could/would the Court do anything about this?

sexmag

GerardKeating wrote: »

If the "witness summons" was served while the witness was in Ireland, but they later went abroad, could/would the Court do anything about this?

Depends how important/valuable the witness was to the case,if it was a witness who saw a high ranking cartel member murder someone then im sure the courts would go through great lengths to get them back or to at least testify in some way

seamus

GerardKeating wrote: »

If the "witness summons" was served while the witness was in Ireland, but they later went abroad, could/would the Court do anything about this?

The judge could theoretically issue a warrant for arrest. But it will only be issue if the judge is satisfied that the witness "is evading service and that he or she is able to give evidence in the case".

The fact that the warrant would not be executable would also be a factor.

In that case, the advice would be for the witness to appoint a solicitor to attend in his stead to explain that the witness has permanently emigrated and does not believe they have evidence to give in this case.

It would be extremely rare in those circumstances for the judge to issue a warrant/summons, unless the witness is believed to be in possession of insanely compelling evidence.


Is there any facility/acceptance in Ireland of evidence by sworn statement or video conference facility?

sexmag

seamus wrote: »

Is there any facility/acceptance in Ireland of evidence by sworn statement or video conference facility?

If they can do it with defendants then I'd say so but again it would come down to cost and importance of their evidence

JDKB17

seamus wrote: »

The judge could theoretically issue a warrant for arrest. But it will only be issue if the judge is satisfied that the witness "is evading service and that he or she is able to give evidence in the case".

The fact that the warrant would not be executable would also be a factor.

In that case, the advice would be for the witness to appoint a solicitor to attend in his stead to explain that the witness has permanently emigrated and does not believe they have evidence to give in this case.

It would be extremely rare in those circumstances for the judge to issue a warrant/summons, unless the witness is believed to be in possession of insanely compelling evidence.


Is there any facility/acceptance in Ireland of evidence by sworn statement or video conference facility?

I have no issue in attending trial itself to give evidence if I must. I just don't want it to harm our chances of a new life free of my family drama and also the expenses of having to travel back and forth from Canada to Ireland would be nigh on impossible to afford.

I would be more than happy to give a written statement or evidence over video conference if such facilities were available.

seamus

I wouldn't allow it to affect your emigration plans tbh. It's unlikely that it will damage your ability to travel in and out of Canada provided you've satisfied their visa requirements.

If you are willing to give evidence, then in the event that you do receive a summons before you leave, make it clear to the solicitor who summons you, that you intend to apply for out-of-pocket expenses. This will include any cost of you travelling back and forth to Canada in the course of the trial.

It would also be no harm to get independent legal advice; for the sake of a €100 consultation they can give you clarity. But only after you receive a summons.

If nothing happens by the time you leave for Canada, then forget about it.

schemingbohemia

Just to clarify, your mother has not brought criminal charges against your Father. She has made an allegation alleging criminal behaviour against your father, it will be up to the Garda and DPP as to whether it goes to trial or not.
Go to Canada, live your life.